Author: Dean Jackie Gardina, J.D.

America’s “Access to Justice” Crisis: Does Cuba Hold the Answer?

While President Trump has proposed a budget that completely eliminates federal funding for a program that provides legal services to people who can’t afford it, Cuba continues to make legal representation available to all of its citizens. Is it possible for the U.S. to borrow ideas from the Cuban system to address the access to justice crisis?

Exploring Cuba

During the summer session, the faculty at the Colleges of Law are leading a study abroad course to Cuba. Culminating in a one-week trip to Havana, students will be introduced to the Cuban law and legal system—examining their constitutional framework, electoral system, court system, and government structure.

In preparation for the course, I visited Havana in early March. There I learned about Cuba’s approach—making legal representation available to all of its citizens regardless of income level. After I returned home, I wondered if the U.S. could adopt some lessons from the Cuban system.

The “Access to Justice” Crisis Defined

For many that live in the U.S., affording adequate legal representation is difficult if not completely out of reach. And the number of people and populations that are affected by this lack of access is quickly growing—creating an “access to justice” crisis.

President Trump’s proposed 2018 budget will only deepen this crisis. It also shines an important light on the growing access to justice gap in our country and highlights a distinction between how Cuba and the U.S. approach legal services for its citizens.

Legal Services Corp. (LSC)—an independent nonprofit established by Congress in 1974 to provide financial support for civil legal aid to low-income Americans—is among the 19 programs in line for total elimination of federal funding. LSC regularly provides free legal services to 1.9 million individuals every year who live in households with incomes at or below 125 percent of the federal poverty guidelines (or about $591 per week for a family of four).

In addition, LSC also:

Helps veterans secure housing

Protects seniors from fraud

Delivers legal services to rural areas

Protects victims of domestic abuse

Helps disaster survivors

Due to the rising costs of legal services, dependency on the LSC has increased significantly in recent years.

Here are a few statistics:

One in five Americans qualify for civil legal assistance funded by LSC

In the last decade, the number of people qualifying for civil legal aid has increased by more than 10 million

Even with LSC in place, 80 percent of low and moderate-income Americans have struggled to afford basic legal services

All of this points to a legal system that does not address the need for all of its citizens to have access to affordable legal representation. Cuba, on the other hand, has found a different way.

The Cuban Approach

There are no private attorneys in Cuba.

Instead, they transformed legal services from a market-based privilege for the wealthy to a public right. All Cuban citizens have access to legal services through offices of “La Organización Nacional de Bufetes Colectivos” (ONBC) or “National Organization of Collective Law Offices.”

Informally, the bufetes colectivos started shortly after the Cuban Revolution by lawyers who were sympathetic to the egalitarian goals of the revolution. Their goal was to ensure public access to legal services. More than a decade after the revolution, the National Assembly codified the informal collectives into the ONBC.

The Ministry of Justice sets the fees that the bufetes colectivos can charge based on the complexity of the case, the level of court hierarchy, and number of appeals.

The fees are incredibly low—ranging from 50 cents to $40. Further, if an individual is unable to afford even these low fees, legal services are provided for free. The lawyers receive a flat salary from the government and, at the end of the year, a percentage of the fees collected by the bufetes colectivos.

Can the Cuban System Translate to the U.S.?

The American legal market is changing, albeit slowly. An increasing number of lawyers are already experimenting with innovative alternative fee and service delivery models in an effort to make legal services more accessible and affordable.

Here are just a few examples:

Open Legal Services, a Utah-based nonprofit, was built to “bridge the justice gap by providing affordable legal services to low- and moderate-income people.” It charges a sliding scale fee based on income.

Janelle Orsi, an Oakland-based attorney, has developed an entire practice dedicated to the sharing economy and uses a flat fee scale based on complexity. Her law firm is a worker-owned cooperative.

Avvo.com allows individuals to consult with an attorney for just $39 and then obtain an attorney at a “fixed price.”

Likewise, Legal Zoom provides a fast and efficient way to find a vetted attorney with flat-fee pricing.

While these groups are making a significant impact, there are still several questions that need to be answered:

Can we combine the market-based innovation of the U.S. with the egalitarian legal services model of Cuba to create community-based “lawyer cooperatives” here?

Can the American system pivot to a system that provides legal services to everyone regardless of income; to a system where quality legal representation is a right rather than a privilege?

These are not easy questions. And the solutions are even more difficult to implement and will take many passionate people to execute. This summer, as students and local attorneys from the Colleges of Law explore Cuba and its legal system, we can at least begin the conversation. Let’s see where we can go from here.

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